1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re R.L. and W.S.

No. 21-0017 (Mingo County 20-JA-14 and 20-JA-15)

MEMORANDUM DECISION

Petitioner Father J.L., by counsel C. Christopher Younger, appeals the Circuit Court of 

Mingo County’s December 8, 2020, order terminating his parental rights to R.L. and custodial 

rights to W.S.

1 The West Virginia Department of Health and Human Resources (“DHHR”), by 

counsel Mindy M. Parsley, filed a response in support of the circuit court’s order. The guardian ad 

litem, Diana Carter Wiedel (“guardian”), filed a response on behalf of the children also in support 

of the circuit court’s order and a supplemental appendix. On appeal, petitioner argues that the 

circuit court erred in failing to make sufficient findings of fact and conclusions of law in the order 

on appeal, adjudicating him as an abusing parent, and terminating his parental and custodial rights.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, 

a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the 

Rules of Appellate Procedure. 

Prior to the initiation of the instant proceedings, the mother filed a domestic violence 

petition against petitioner in September of 2019. A hearing was held in the Mingo County Family 

Court in October of 2019 wherein it entered a domestic violence protective order against petitioner 

and ordered supervised visitation between petitioner and R.L. The next month, the circuit court 

received a referral from the family court wherein the mother asserted that petitioner neglected and 

sexually abused R.L. The circuit court directed the DHHR to investigate any possible abuse and 

neglect of R.L. and submit a report to the court. In December of 2019, the circuit court held another 

hearing and entered a temporary order continuing visitation between petitioner and R.L. and 

1

Consistent with our long-standing practice in cases with sensitive facts, we use initials 

where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va. 

254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013); 

State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W. 

Va. 641, 398 S.E.2d 123 (1990). 

FILED

June 22, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

mandating he pay child support to the mother. The circuit court continued to hold several status 

hearings over the next few months. 

In June of 2020, the DHHR filed a child abuse and neglect petition against petitioner. The 

DHHR alleged that it received a referral in September of 2019 alleging that petitioner and the 

mother had lived together with R.L., their biological child, and W.S. and H.G., the mother’s 

children from a prior relationship. According to the petition, a referral indicated that petitioner had 

sexually abused H.G. for ten years prior to her turning eighteen and moving out of the home. 

According to the referral, fifteen-year-old W.S. disclosed sexual abuse as well. A Child Protective 

Services (“CPS”) worker interviewed R.L. and W.S. According to the petition, ten-year-old R.L. 

did not make any disclosures of sexual abuse during her interview. However, W.S. disclosed in 

her forensic interview that petitioner had made sexually suggestive comments to her. W.S. 

disclosed that petitioner told her he “would not be opposed to [oral sex]” with her. During the 

interview, W.S. did not report any inappropriate physical contact or direct threats of abuse. 

However, W.S. did report that petitioner touched her on her lower back and that this made her 

uncomfortable. According to the petition, H.G., then an adult, disclosed that petitioner sexually 

abused her for ten years when she was a teenager in a recorded interview with the State Police. 

The CPS worker also interviewed the mother, who stated that she had no idea about the abuse and 

left petitioner’s home to protect the children once it was disclosed to her. According to the petition, 

the CPS worker was unable to thoroughly interview petitioner but, in the presence of his attorney, 

petitioner denied the abuse allegations. The DHHR also alleged that petitioner was charged 

criminally with twelve counts of sexual abuse as a result of the disclosures. According to the 

petition, the DHHR substantiated sexual abuse against petitioner which constituted aggravated 

circumstances. As such, the DHHR requested that the mother retain legal and physical custody of 

the children. 

The circuit court held a preliminary hearing later that month wherein several witnesses 

testified as to the allegations in the petition. The CPS worker testified to the investigation into

petitioner’s conduct, during which W.S. disclosed that petitioner made inappropriate sexual 

comments to her. Specifically, W.S. disclosed to the worker that petitioner commented on her 

breasts and her butt. The worker also testified that W.S. told petitioner she was bisexual, and 

petitioner told her he could “make her straight and make her like it.” The CPS worker also testified 

that she interviewed H.G., who had resided in the home before she turned eighteen years old. The 

worker testified that H.G. disclosed that petitioner would take her to the store, buy different flavors 

of lollipops, blindfold her, and put the lollipops in her mouth and ask her to guess the flavor. H.G. 

disclosed to the worker that during this “game,” petitioner would also insert his penis in her mouth. 

In light of the evidence, the circuit court found there had been sexual suggestions and attempts to 

engage in sex with W.S. The circuit court further found it was appropriate to remove the children 

from petitioner’s custody and ratified their removal. Upon the recommendation of the guardian, 

the circuit court also ceased visits between petitioner and R.L. and ordered that petitioner have no 

contact with the children.

The circuit court held an adjudicatory hearing in August of 2020. At the hearing, the circuit 

court took judicial notice of all prior testimony, findings of fact, and conclusions of law from the 

preliminary hearing. No objections were made. Next, a service provider who supervised 

petitioner’s visits with R.L. testified. The service provider testified that petitioner kissed R.L. on 
3

the lips at the end of their first two visits, which she considered inappropriate. The service provider 

also testified that petitioner initiated handholding with R.L. and interlocked their fingers as they 

walked around the building together. Based on the service provider’s understanding of the 

allegations in the matter, the service provider testified that these actions caused her concern for the 

child. Next, a forensic interviewer testified that W.S. disclosed to her that petitioner had sexually 

abused her older sister and that he attempted to sexually abuse her. According to the forensic 

interviewer, W.S. alleged that petitioner touched her lower back and made her feel uncomfortable. 

W.S. also disclosed to the forensic interviewer that petitioner told her “he would not be opposed 

to [oral sex]” and that he would “make her straight” in reference to her sexual orientation. The 

forensic interviewer also testified that W.S. disclosed that she asked petitioner for face paint to 

wear at a ball game and he told her he would “paint her face and make her like it.” W.S. also 

indicated to the forensic interviewer that petitioner wanted to play a game where he would 

blindfold her and let her try different types of lollipops. The forensic interviewer testified that she 

believed W.S.’s disclosures and did not believe the child had been coached to make the disclosures. 

The forensic interviewer also testified that R.L. did not make any disclosures of abuse. Finally, the 

father of W.S. testified that W.S. told him about petitioner’s inappropriate actions toward her. The 

father testified that he immediately contacted the mother and advised her of W.S.’s disclosures. 

The father also testified that he never had any issues with the mother regarding visits with their 

child, despite their prior divorce. 

After hearing the evidence, the circuit court found that petitioner abused and neglected the 

children. The circuit court found that petitioner had engaged in inappropriate touching and 

attempted to play a sexual game with W.S. The circuit court found it was the same game that 

petitioner had engaged in with H.G., who he had been accused of molesting. The circuit court 

further found that W.S. was uncomfortable around petitioner because of his inappropriate 

comments toward her and because he placed his hand in an uncomfortable way on her backside. 

The circuit court also found that although R.L. did not make any disclosures of sexual abuse, 

petitioner acted in an inappropriate manner during supervised visits with the child by kissing the 

child on the lips and holding her hand inappropriately. Following the circuit court’s findings, 

petitioner moved for an improvement period and contact with R.L. The DHHR objected to 

petitioner’s motion. In support of his motion for an improvement period, petitioner advised the 

court that he had nothing to improve with regard to parenting R.L. The circuit court denied 

petitioner’s motion for an improvement period and made further findings that he was grooming 

R.L. for possible sexual contact. 

Prior to the dispositional hearing, the guardian filed a report with the circuit court 

recommending the termination of petitioner’s parental and custodial rights to the children. 

According to the report, H.G. indicated that, during her teenage years, petitioner had abused her 

by touching her between her thighs, rubbing her feet and legs, and putting his hand under her 

underwear to touch her butt and vagina. H.G. stated that this abuse was not uncommon and that 

petitioner engaged in these abuses at least once a month, when everyone else was out of the house 

or asleep. The report also detailed W.S.’s disclosures, including that petitioner made inappropriate 

sexual remarks to her about oral sex and references to her sexuality, and touched her lower back 

which made her feel uncomfortable. According to the report, the guardian became involved in the 

proceedings when petitioner was still receiving supervised visits with R.L. The report detailed that 

petitioner kissed R.L. on the lips, would get into a hot tub with her and hold her on his lap, and he 
4

would bring her lollipops, which was inappropriate given the allegations from the other children. 

According to the report, however, R.L. did not make any disclosures of abuse. The report also 

detailed that petitioner refused to participate in a psychological evaluation. According to the report, 

the circuit court also granted the DHHR’s request to be relieved from providing services to 

petitioner based on the aggravated nature of the findings. Finally, the guardian detailed that W.S. 

stated she did not want future contact with petitioner, but R.L. stated she still wanted future contact 

with petitioner. However, the guardian indicated that R.L. was only eleven years old at the time 

and was unable to recognize when petitioner’s actions towards her were inappropriate. As such, 

the guardian did not recommend that petitioner have contact with R.L. or W.S.

In October of 2020, the circuit court held a dispositional hearing wherein the DHHR and 

guardian moved to terminate petitioner’s parental and custodial rights. Prior to the presentation of 

evidence, the circuit court took judicial notice of all prior testimony, findings of fact, and 

conclusions of law. Next, H.G. testified to prior sexual abuse by petitioner, including that petitioner 

inserted his penis into her mouth when she was just nine years old. H.G. testified that she was 

blindfolded when the incident occurred. H.G. also testified that petitioner would touch her in ways 

she considered inappropriate and made inappropriate sexual comments. Finally, H.G. testified that 

she was concerned her younger sisters were in danger because she observed petitioner engage in 

similar conduct toward W.S. and R.L. After considering the evidence, the circuit court terminated 

petitioner’s parental rights to R.L. and his custodial rights to W.S. In support, the circuit court 

found that petitioner was grooming W.S. and R.L. for sexual abuse and acted inappropriately 

toward R.L. during supervised visits. Specifically, the circuit court found this included petitioner 

having R.L. sitting on his lap in a hot tub, kissing her on the lips, and bringing her lollipops. The 

circuit court determined that this behavior was grooming the child for sexual abuse and that 

petitioner attempted to engage in sexual conduct with W.S. The circuit court further found that 

petitioner sexually abused the children’s sibling, H.G., while she was a minor in the home and that 

the children were in danger of the same conduct. Based on this evidence, the circuit court 

concluded that there was no reasonable likelihood that the conditions of abuse and neglect could 

be substantially corrected in the near future and that termination of petitioner’s parental and 

custodial rights was necessary for the children’s welfare. Petitioner now appeals the December 8, 

2020, dispositional order.

2

The Court has previously established the following standard of review in cases such as this:

“Although conclusions of law reached by a circuit court are subject to de 

novo review, when an action, such as an abuse and neglect case, is tried upon the 

facts without a jury, the circuit court shall make a determination based upon the 

evidence and shall make findings of fact and conclusions of law as to whether such 

child is abused or neglected. These findings shall not be set aside by a reviewing 

court unless clearly erroneous. A finding is clearly erroneous when, although there 

is evidence to support the finding, the reviewing court on the entire evidence is left 

with the definite and firm conviction that a mistake has been committed. However, 

a reviewing court may not overturn a finding simply because it would have decided 

2

The children’s mother is a nonabusing parent and the children have achieved permanency 

in her care.
5

the case differently, and it must affirm a finding if the circuit court’s account of the 

evidence is plausible in light of the record viewed in its entirety.” Syl. Pt. 1, In 

Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996). 

Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). 

 First, petitioner argues that the circuit court’s adjudicatory order does not contain sufficient 

findings of fact and conclusions of law for a proper appellate review. Petitioner further asserts that 

the statements in the adjudicatory hearing order are conclusions, not findings of fact. We disagree 

and find that the order in question meets the applicable requirements for review on appeal.

West Virginia Code § 49-4-601(i) requires that “[a]t the conclusion of the adjudicatory 

hearing, the court shall make a determination based upon the evidence and shall make findings of 

fact and conclusions of law as to whether the child is abused or neglected.” See also R. 27, W. Va. 

R. of P. for Child Abuse and Neglect Proc. (requiring findings of fact and conclusions of law at 

the conclusion of the adjudicatory hearing). The circuit court’s order “must be sufficient to indicate 

the factual and legal basis for the [court]’s ultimate conclusion so as to facilitate a meaningful 

review of the issues presented.” Province v. Province, 196 W. Va. 473, 483, 473 S.E.2d 894, 904 

(1996). 

Rule 27 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings 

provides that “[a]t the conclusion of the adjudicatory hearing, the court shall make findings of fact 

and conclusions of law, in writing or on the record, as to whether the child is abused and/or 

neglected in accordance with the provisions of W. Va. Code § 49-4-604(i).” (Emphasis added). 

While we acknowledge that the circuit court’s adjudicatory order is somewhat limited in its 

findings of fact and conclusions of law, the circuit court provided ample findings on the record, 

many of which have been reproduced in this decision. Rule 27 expressly permits that such findings 

may be made on the record, a point petitioner seemingly ignores in his argument. Therefore, we 

find no error in the circuit court’s findings of fact or conclusions of law as they are sufficiently 

detailed for appellate review.

Next, petitioner argues that the circuit court erred in finding by clear and convincing 

evidence that he abused and neglected the children. Petitioner argues that the circuit court did not 

have sufficient evidence at adjudication to find that he engaged in the alleged abuse. We disagree 

and find that petitioner is entitled to no relief.

At the conclusion of the adjudicatory hearing, the court shall make a determination 

based upon the evidence and shall make findings of fact and conclusions of law as 

to whether such child is abused or neglected . . . . The findings must be based upon 

conditions existing at the time of the filing of the petition and proven by clear and 

convincing evidence.

In re F.S., 233 W. Va. 538, 544, 759 S.E.2d 769, 775 (2014). This Court has explained that “‘clear 

and convincing’ is the measure or degree of proof that will produce in the mind of the factfinder a 

firm belief or conviction as to the allegations sought to be established.” Id. at 546, 759 S.E.2d at 

777 (citation omitted). However, “the clear and convincing standard is ‘intermediate, being more 
6

than a mere preponderance, but not to the extent of such certainty as is required beyond a 

reasonable doubt as in criminal cases.’” Id. (citation omitted). Further, West Virginia Code § 49-

1-201 defines an “abused child” as

[a] child whose health or welfare is being harmed or threatened by . . . [a] parent . 

. . who knowingly or intentionally inflicts, attempts to inflict, or knowingly allows 

another person to inflict, physical injury or mental or emotional injury, upon the 

child or another child in the home.

(Emphasis added). 

Here, the circuit court found that petitioner was grooming W.S. and R.L. for sexual abuse 

and acted inappropriately toward R.L. during supervised visits. The circuit court also found that 

petitioner sexually abused the children’s sibling, H.G., while she was a minor in the home and that 

the children were in danger of the same conduct. On appeal, many of petitioner’s arguments in 

support of this assignment of error are predicated on his assertions that the circuit court erroneously 

weighed the evidence in question. However, the rulings to which petitioner cites all come down to 

the issue of credibility, and, as this Court has long held, “[a] reviewing court cannot assess witness 

credibility through a record. The trier of fact is uniquely situated to make such determinations and 

this Court is not in a position to, and will not, second guess such determinations.” Michael D.C. v. 

Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997). 

Further, petitioner argues that W.S. never disclosed that she was sexually abused and that 

the circuit court erred in finding that the DHHR substantiated sexual abuse during the proceedings. 

However, petitioner incorrectly argues that the circuit court relied on W.S.’s disclosures to make 

a finding that petitioner sexually abused the child. Instead, the circuit court based its finding that 

H.G. was sexually abused, in part, on H.G.’s direct testimony as to petitioner’s conduct. Petitioner 

also argues that the CPS worker could not provide the correct definition of sexual abuse and that 

W.S.’s allegations of inappropriate comments and touching did not support a finding of sexual 

abuse of the child. These arguments, however, are unavailing, given that the record is clear that

W.S. and R.L. were at risk for similar sexual abuse. 

Additionally, in the criminal context, sexual abuse may be proven solely with the victim’s 

testimony, even if that testimony is uncorroborated. Syl. Pt. 5, State v. Beck, 167 W. Va. 830, 286 

S.E.2d 234 (1981). Given that uncorroborated testimony is sufficient to satisfy the higher standard 

of proof in a criminal proceeding, it is clear that H.G.’s consistent disclosures regarding 

petitioner’s sexual abuse were sufficient to satisfy the clear and convincing burden of proof below. 

Furthermore, petitioner failed to testify and, therefore, failed to rebut H.G.’s and W.S.’s 

allegations.

“‘Because the purpose of an abuse and neglect proceeding is remedial, 

where the parent or guardian fails to respond to probative evidence offered against 

him/her during the course of an abuse and neglect proceeding, a lower court may 

properly consider that individual’s silence as affirmative evidence of that 

individual’s culpability.’ Syl. Pt. 2, West Virginia Dept. of Health and Human 
7

Resources ex rel. Wright v. Doris S., 197 W.Va. 489, 475 S.E.2d 865 (1996).” Syl. 

Pt. 2, In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (2002).

Syl. Pt. 2, In re K.P., 235 W. Va. 221, 772 S.E.2d 914 (2015). Thus, there is no error in the circuit 

court’s finding that petitioner’s silence was “affirmative evidence” of his culpability in this matter. 

Viewing the record in its entirety, we find that the circuit court did not err in adjudicating petitioner 

as an abusing parent based on clear and convincing evidence that he had sexually abused H.G. and 

that W.S. and R.L. were at risk of similar abuse. Accordingly, we find no error in the circuit court’s 

adjudication of petitioner. 

Finally, petitioner argues that the circuit court erred in terminating his parental and 

custodial rights. According to petitioner, there was insufficient evidence to find that he abused and 

neglected the children and, therefore, the circuit court committed reversible error by terminating 

his parental and custodial rights. We disagree and find that the substantial evidence laid out above 

supports termination of petitioner’s parental and custodial rights.

West Virginia Code § 49-4-604(c)(6) provides that circuit courts are to terminate parental 

and custodial rights upon finding that there is “no reasonable likelihood that the conditions of 

neglect or abuse can be substantially corrected in the near future” and that termination is necessary 

for the children’s welfare. According to West Virginia Code § 49-4-604(d), “‘no reasonable 

likelihood that conditions of neglect or abuse can be substantially corrected’ means that, based 

upon the evidence before the court, the abusing adult or adults have demonstrated an inadequate 

capacity to solve the problems of abuse or neglect on their own or with help.” As set forth 

repeatedly above, petitioner’s failure to acknowledge the conditions at issue in his case have 

rendered them uncorrectable. In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013)

(“Failure to acknowledge the existence of the problem, i.e., the truth of the basic allegation 

pertaining to the alleged abuse and neglect . . . , results in making the problem untreatable.”).

In terminating petitioner’s parental and custodial rights, the circuit court specifically found 

that petitioner was grooming W.S. and R.L. for sexual abuse and that he sexually abused H.G. 

when she was in the home. Petitioner continued to deny the allegations against him despite the 

overwhelming evidence, rendering the problems of abuse and neglect untreatable. The circuit court 

also found that there was no reasonable likelihood that conditions of abuse and neglect can be 

remedied in the future. Pursuant to West Virginia Code § 49-4-604(c)(6), circuit courts may 

terminate parental and custodial rights upon these findings. Additionally, this Court has held that 

“[t]ermination of parental rights, the most drastic remedy under the 

statutory provision covering the disposition of neglected children, [West Virginia 

Code § 49-4-604] . . . may be employed without the use of intervening less 

restrictive alternatives when it is found that there is no reasonable likelihood under 

[West Virginia Code § 49-4-604(d)] . . . that conditions of neglect or abuse can be 

substantially corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 

114 (1980).

Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). As such, it is clear that the 

circuit court did not err in terminating petitioner’s parental and custodial rights.
8

For the foregoing reasons, we find no error in the decision of the circuit court, and its 

December 8, 2020, order is hereby affirmed.

Affirmed.

ISSUED: June 22, 2021 

CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton